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Kant, the State, and Revolution

Reidar Maliks

Kantian Review / Volume 18 / Issue 01 / March 2013, pp 29 47DOI: 10.1017/S1369415412000271, Published online: 04 February 2013

Link to this article: http://journals.cambridge.org/abstract_S1369415412000271

How to cite this article:Reidar Maliks (2013). Kant, the State, and Revolution. Kantian Review, 18, pp 2947 doi:10.1017/S1369415412000271

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Kant, the State, and Revolution

reidar maliks

Norwegian Centre for Human Rights, University of OsloEmail: [email protected]

AbstractThis paper argues that, although no resistance or revolution is permittedin the Kantian state, very tyrannical regimes must not be obeyed becausethey do not qualify as states. The essay shows how a state ceasesto be a state, argues that persons have a moral responsibility to judgeabout it and defends the compatibility of this with Kantian authority.The reconstructed Kantian view has implications for how we conceiveauthority and obligation. It calls for a morally demanding definitionof the state and asserts that the primary personal responsibility is notto evaluate the morality of every single law but to evaluate the moralstanding of the polity.

Keywords: authority, judgement, Kant, revolution, the state

IntroductionKant argues that resisting the state or engaging in revolution can never

be right, even when the legislature or executive violates the most basic

principles of law and behaves ‘quite violently (tyrannically)’.1 Most

interpreters have found that Kant sacrifices his moral principles of

personal autonomy for the sake of political order, and that this involves

him in a contradiction and even a ‘politics of barbarism’ (Elshtain

1981: 221). These interpreters, who include Christine Korsgaard

(1997), Allen Rosen (1993), and Sarah Williams Holtman (2002), find

that his political theory must be reconstructed, removing or cir-

cumventing the state’s absolute authority, its right to create obligations

by mere choice. But a minority of interpreters has claimed that Kant

does not contradict himself, because by ‘state’ he has in mind a con-

stitutional regime protecting justice, and not just anyone wielding

superior coercive force. Only a just regime fulfils the end for which the

state exists and has authority. Hence, the duty is not to obey just anyone

who has superior coercive power in a territory and who claims to be

VOLUME 18 – 1 KANTIAN REVIEW | 29

the sovereign. Recently, Jeremy Waldron (2006), Arthur Ripstein (2009)

and B. Sharon Byrd and Joachim Hruschka (2010) have maintained

the view.2

But supporters of this theory face a significant and unresolved difficulty,

because it might seem that the view is incompatible with Kant’s

requirement that state authority must not depend on private judge-

ments. On Kant’s view the state can only establish and defend equal

liberty if its authority is above the shifting views and inclinations of

persons and factions. If persons are free to evaluate whether a polity really

is a just constitutional regime it might seem to render state authority

vulnerable to the more or less well-reasoned views of their subjects, and,

since persons disagree on moral issues (one person’s king is another per-

son’s tyrant), it would seem to open the door to vigilantism or anarchy.

Byrd and Hruschka and Ripstein do not explore these difficulties,

perhaps because they rely on the premise that judging whether a state

has failed is fairly easy. Both interpretations operate with Nazi Germany as

the chief example of a failed state, yet one can imagine less clear-cut cases.

It is sufficient to think of governments in the Eastern bloc before 1989 or

governments in the Arab world prior to 2011. Although wielding superior

coercive power, many of them failed to respect the most basic principles of

Kant’s juridical condition and displayed no will to reform. How might one

determine on Kantian grounds in such cases whether the polity is a true

state (with great imperfections) or a failed state?

In this essay I seek to answer this difficulty by providing a fresh view

on Kant’s notions of authority and obligation. I will explore how the

duty to enter the state can justify the use of force for the sake of

creating a rightful government, highlighting the neglected role of

individual judgement in this process. Many have followed Hannah

Arendt (1982) in assuming that judgement plays a very limited role in

Kant’s political theory, but I argue that it is pivotal: in order to be

entitled to the benefits of the rule of law, persons have a responsibility

first to evaluate whether the state qualifies as a true juridical condition.

In section 1 I briefly explain Kant’s theory of obligation and rejection

of revolution; section 2 seeks to explain by what criteria it can be

established that a polity has ceased to be a true state. In section 3

I explain the nature of the responsibility to judge whether there is a

state, and in section 4 I defend the view against the objection that

it is incompatible with Kant’s theory of authority. In the conclusion

I argue that on the Kantian view the primary personal responsibility is

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30 | KANTIAN REVIEW VOLUME 18 – 1

not to evaluate the morality of single laws but to evaluate the moral

standing of the polity.

1. The Obligation to Obey the StateKant is unequivocal that persons have a duty to obey the state they are

in. The obligation is categorical: persons cannot evaluate laws

according to their own moral sense and choose which ones to obey, nor

can they judge rulers and decide whether they deserve allegiance. Public

law determines what is permitted or prohibited, and these laws impose

strict duties on citizens. Strict duties require specific performance, so

that a person fulfils the duty only by acting in a particular way. To the legal

duties are affixed penalties and punishments, and a transgressor will suffer

consequences according to the severity of the crime. The most serious

transgression is to attack the person of the monarch or to seek to kill him –

this is high treason and punishable by death (MS 8: 320).

Kant is also unequivocal that the obligation to obey the law applies

even if the government is unjust. A government is unjust when it fails to

govern according to the rule of law and instead arbitrarily imposes its

will on the population. This typically takes place when the division

between legislative, executive and judiciary is not respected, or when

the government seeks to interfere unduly in the private sphere by

imposing on citizens a particular view of the good life or a religion.

Kant typically characterizes that as despotism. Nonetheless, even when

the government behaves unjustly, and it therefore would not in prin-

ciple have been wrong to stop government from so behaving, private

persons cannot refuse to obey the law. Persons who are wronged must

instead seek to contest public authority through existing institutional

means, in particular by registering protest in the public sphere.

The justification for the categorical duty to obey the law is that it is the only

way equal freedom can be secured. Freedom in social interaction, which

Kant sometimes refers to as external freedom in contrast with internal

transcendental freedom, is to have a range of choices protected and to be

independent from the arbitrary choices of others. This freedom must be

equal since every human being is endowed with the same innate right to

freedom (TP 8: 289; MS 8: 238, 256, 306; SF 7: 85). Kant defines justice, or

‘right’, in the universal principle of right (UPR), as the formal compatibility

of choice among every member of a state according to a universal law:

Any action is right if it can coexist with everyone’s freedom in

accordance with a universal law, or if on its maxim the freedom

kant, the state, and revolution


of choice of each can coexist with everyone’s freedom in

accordance with a universal law. (MS 8: 230)

Maxims of acts that asymmetrically limit the freedom of some more than

others (Kant’s favourite example is hereditary nobility) could not possibly

be established in the form of universal law and so are incompatible with a

juridical condition. The test of whether a maxim is apt to become a law in

the doctrine of right is therefore, as in Kant’s moral writings, the possibility

of a maxim being made universal without contradiction.

I will refer to Kant’s view of justice as a public recognition view because

it relies on positive law as a necessary condition for validity. Kant

himself rarely uses the term justice (Gerechtigkeit) and speaks usually

of something being right (Recht) and of a condition being right

(Rechtzustand). This terminology signals a close connection between

justice and positive law. Any claim to have a right (ein Recht) must

be capable of being established in a body of law (das Recht), and

only becomes conclusively valid once this is the case. Natural laws

(naturliche Gesetze), which are those laws that can be recognized as

obligatory a priori by reason without positive law, are indeterminate

and can only become a justification for action in the state once they

have been specified and recognized in the form of positive law.

The reason rights only become valid through law is that entitlements

that can be enforced against others must be secured by an ‘omnilateral’

will, that is, a will in which everyone could see themselves as included.

The opposite is a merely unilateral will, expressing the private views of

one person. If somebody unilaterally claimed to have a right, but

refused to abide by shared institutions to define and enforce it, it would

be the same as refusing to be in a civil condition, where conflicts among

rights-claimants are solved by public determinations rather than private

violence. Individual parties to a conflict can only impose a private will

on others, and as such act despotically. The state is the only organi-

zation that can function impartially and provide an omnilateral will,

because it is sovereign, purportedly neutral, and provides a system of

laws and procedures for establishing and arbitrating claims to right.

Therefore, its verdict is of a different order from that of parties to a

conflict: it has authority, the right to bind others to its decisions by its

mere choice (MS 8: 224).

Because justice requires positive law, it is a duty to be in a juridical

condition (a state), even an imperfect one. Kant spends considerable

reidar maliks


efforts showing that it follows from this view of justice that resistance

and revolution cannot be just. These arguments revolve around the

paradox that any disobedient person finds him or herself in, that is at

one and the same time wanting public legal authority but reserving the

right to be the final judge of right and wrong. Whether an individual or

a people contest the ruler, there will never be a neutral authority to

decide in the dispute between the two, and so an individual or a people

will in effect be judge in their own case.

This was not a novel argument; Locke and Rousseau had already

explored this paradox and used it to rule out there being a contractual

relation between people and sovereign because there would be no

neutral authority to adjudicate the contract. They nonetheless defend a

people’s right to revolution because in their view a people can spon-

taneously act in a unified manner and pursue justice. This option is not

open to Kant, however, because of his public recognition view of justice.

An act is not justified merely by the outcomes it has (such as the deposition

of a despot and the creation of a new regime); its justice depends on

whether its maxim can be made universal without contradiction. But the

maxim to rebel (even under despotic government) cannot be made uni-

versal because it would mean that anyone unilaterally could judge the ruler

to be despotic and set themselves over the law. This would render the law

only conditionally binding and, in Kant’s view, that is incompatible with a

juridical condition. Since a juridical condition is necessary for the sake of

equal liberty, resistance and revolution are excluded, ultimately, because

they are incompatible with freedom.

2. Defining the StateKant’s argument has led to a good deal of dissatisfaction because,

paradoxically, it seems to require persons to obey despotic governments

for the sake of their own freedom. But recently commentators have

started to explore the possibility that Kant may have rejected a right to

resist only to constitutional states, and not to ‘any thug who happens to

wear a crown’ (Waldron 2006). Interpretations wary widely in terms of

what that might mean. Byrd and Hruschka hold that any polity that is

not a republic (government that protects equal liberty and the rule of

law and institutionally separates the legislature from the executive) fails

to deserve obligation. This is a difficult view to maintain, for two

reasons. First, because it conflicts with Kant’s many statements that

one must obey even very imperfect rulers (TP 8: 290, 299, MS 8: 320),

and second, because it saddles Kant with an implausible view. If nothing



short of a republic must be obeyed it would be difficult for a polity ever to

develop towards that stage. Ripstein, more cautiously, sets a lower limit

and argues that regimes that enslave or kill parts of the population cannot

be counted as true states (his chief example is Nazi Germany) (2009: 338).

Because such regimes deny persons the right to life and liberty they must

in Kant’s terminology be classified as ‘barbaric’ and therefore not true

states at all.

Ripstein’s view is less controversial, but it remains unclear exactly how

persons should judge the matter and why it does not contradict Kant’s

theory of authority. Byrd and Hruschka describe the dissolution of the

state as a right of revolution (2010: 91), but that seems to conflict with

Kant’s many statements that revolution cannot be right. Moreover,

it makes no sense to speak of revolution when in fact the state has

dissolved, since a revolution is when force is used to overturn the

existing constitution in a state. To understand this more precisely, the

first step is to elucidate the Kantian notion of the state.

There are two necessary and sufficient elements of the state: power

and the rule of law. Kant refers to the ideal of the state as the Platonic

ideal of the respublica noumenon: ‘the idea of a constitution in har-

mony with the natural right of human beings’ (SF 7: 90). The first

aspect of the respublica noumenon is that it has superior coercive

power: ‘he who does not have enough power to protect each one

among the people against the others does not have the right to

command the people either’ (ZEF 8: 383). A condition of anarchy

cannot be a state; there must be a univocal determination of right and

wrong (Waldron 1996). The sovereign institution in a state is the

legislature. Its task is to create laws and ensure that sanctions are

attached so that transgressors are apprehended and punished. To this

end, the legislature has the ultimate control, through the executive

branch of government, over all public institutions of order, including

the police and the military.

The second aspect of the ideal state is the rule of law. On the public

recognition view, justice must be defined through legislation. This is

why Kant calls a state a ‘juridical condition’ (Rechtszustand) and

defines it as ‘a union of a multitude of human beings under laws of

right’ (Rechtsgesetzen) (MS 8: 313). The basis for legally established

justice is the procedure of the UPR, which requires laws to be such that

they secure equal liberty. The state must govern through established law

(that which is rechtens), in support of that which is rightful (rechtlich).

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To ensure this, there are three powers in the juridical condition: the

legislature, executive and judiciary – and they are separated. The leg-

islature is the sovereign, creating positive laws that are impartial

and held to be the general will of the people. Positive laws are backed

by force, providing uniform rules of right and wrong. These laws

are employed in specific cases by the judiciary, and enforced by the

executive. Not all positive law is according to justice. Like modern legal

positivists, Kant distinguishes between law and its merits, between

positive law, ‘what is laid down as right’ or rechtens, and laws that are

right (iustum) according to ‘a moral concept’ or Recht (MS 8: 229, 267,

297, 306). If the state completely lacks one of its two defining aspects it

would not be a state. In reality every state is more or less deficient in

one of the two dimensions. Deficiencies in power and justice can

intersect in four possible ways, creating four different regimes: just and

powerful, just and weak, unjust and weak, and unjust and powerful.

The particular difficulty is not caused by very just and efficient regimes

or their opposites, but those regimes that are either fairly unjust or

inefficient. For a deficiency to cast doubt on whether the entity is a true

state, the transgression must be systematic and severe. Discrete viola-

tions of justice (e.g. unjust sentencing in a criminal trial) occur in every

legal system and the normal remedy is to appeal through the existing

procedures. If deficiencies are minor, the state will in general be capable

of supporting equal freedom and as such qualify as a state.

In Kant’s view, states often start as violent power grabs and proceed to

work themselves clean through history. State sovereignty is therefore a

precondition for reform, hence power must exist before a civil condition

can be established. To explain why unrightful states are provisionally

justified he devised the category of ‘permissive laws’ (leges latae, lex

permissiva), which mean that injustices (wrongdoings) are temporarily

tolerated if that is necessary for the transition to a just regime.3

Permissive laws of reason y allow a situation of public right

afflicted with injustice to continue until everything has either

itself become ripe for a complete overthrow or has been made

almost ripe by peaceful means. (ZEF 8: 373n)

Ripstein as well as Byrd and Hruschka argue that a system that treats its

population or parts of it as serfs or slaves cannot be said to constitute a

juridical condition. As such they use a similar approach to that of Julius

Ebbinghaus who distinguishes between injustices and acts of inhumanity

(1953: 21). Injustices are arbitrary decisions by the government to restrict



liberty more than is required for the sake of justice, or unfair

implementation of the law. Acts of inhumanity, however, reject the right

of individuals to have legally protected rights – to property, freedom of

speech and even life. Excluding persons from the community of rights is

the most severe form of transgression and governments that do so go

beyond their competence to such an extent that they cannot be con-

sidered governments, but rather private individuals with no authority.

But while it may be comparatively easy to conclude that regimes that

completely refuse to secure the rights of its population or parts of it do

not satisfy the conditions for a juridical condition, one may wonder

about harder cases where a regime to some extent provides rights but

withholds some rights from everyone and distributes other rights

unequally. One may also wonder about the case of a regime that does not

satisfy perfectly the conditions of sovereignty because it lacks superior

power. Where exactly should the line be drawn between a highly imperfect

regime that is still entitled to obedience, and a regime that has crossed the

line and is no longer to count as a juridical condition?

This is not a question of merely academic interest, since persons are

sometimes faced with situations where multiple parties claim the right

to rule. If the situation slides into one of civil war, there is no juridical

condition, but before it comes to that there will normally be one party

that claims and perhaps deserves the right to rule. In those extreme

circumstances persons will need principles to decide by and the question

is whether such principles can be elicited from Kant’s principle of the

juridical condition. The task of finding this point can be compared

to the Lockean question of judging exactly when a ruler forfeits his

authority to rule. Locke is quite clear that one or a few transgressions

by the ruler are insufficient; there must be a ‘train of abuses’ (1988:

yy210, 225). But he makes no attempt at explaining how long that train

must be, and we may wonder whether it can be determined at all.

In the case of Kant, we must expect that the distinction will revolve

around the question of whether reform of the present regime is possible.

After all, he is prepared to admit that an unjust regime can be provi-

sionally justified in so far as the rulers take seriously their obligation to

reform. We must assume that he meant not just regimes that unduly

restrict freedom, but also regimes that to some extent fail to provide

individuals with rights, as long as they are intent on reform (ZEF 8:

373–5). But this condition may be vexing for two reasons. First, it is

difficult to know whether rulers are serious when promising reform,

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second, by waiting for reform to happen persons may put themselves in

a weak position where they can easily be targeted by the present regime.

To distinguish between imperfect regimes – between those credibly devel-

oping towards justice and those that are not going to reform – is a matter of

identifying the intention of the ruler. Since one cannot literally get inside the

mind of another person, intentions must be identified in two ways. First,

statements can be analysed in order to establish whether the ruler is at all

committed to the principles of equal liberty. If the ruler’s expressed will

shows a maxim that is incompatible with a civil condition there is little

reason to expect reform. Second, if the ruler claims to be committed to the

principles of equal liberty, behaviour must be observed to reveal whether

there is reason to trust those intentions. Violation of contracts is one

indication; another is if the ruler refuses to permit freedom of expression,

since this is how the people can communicate their wish for reform

(as emphasized by Ripstein 2009: 342). The rule-breaking behaviour must

be persistent if it is an indication of lacking an intention to reform.

Establishing whether there is reason to expect reform from someone

holding power will be a matter of judging a particular case. This cannot

be an easy judgement. Consider Kant’s own Prussia, which in the

Allgemeines Landrecht of 1794 established a confused mix of proto-

liberal principles and late feudal privileges. While it condoned serfdom,

and as such violated the humanity of many of its subjects, the legisla-

tion went through a large but slow overhaul and it eventually abolished

serfdom in 1807. But this may never have happened, or at least not

have happened so soon, had it not been for Napoleon’s victory over

Prussia in 1806. This development would have been hard to predict for

someone living in Prussia in the 1790s. It was nonetheless clear by then

that the regime was intent on reform and that it was willing to listen to the

public, since it favoured a fairly large sphere of free expression. We know

that Kant himself judged his state to be on a path towards republicanism.

Other regimes may be less obviously committed to reform. Among the

autocratic regimes in the Arab world prior to 2011 some, like Egypt,

seemed set on a path of reform, while the great bulk were not committed

to principles of equal liberty nor were they opening a public sphere where

the country’s future could be discussed. As such, they may, in Kant’s terms,

have been doing wrong ‘in the highest degree’.

3. The Role of JudgementWhat does it mean to make oneself the judge about the state, and how

could anyone be entitled to do so? For Byrd, Hruschka, and Ripstein



this question does not surface perhaps because they assume that no

judgement needs to be made about whether a state exists. In cases of

despotism and barbarism the state has simply disappeared and indivi-

duals are free to act. But that begs the question because in order to

know that the present regime is despotic or barbaric a judgement has to

be made, and this is a complex moral judgement, not merely a matter of

surveying who has the greatest coercive force. How can it be made and

who is entitled to make it?

Judging consists of two parts: forming a verdict, and acting on it.

To simply form a verdict without acting on it does not interfere with the

freedom of anyone else and could therefore not be prohibited according

to the UPR, which limits justice to the compatibility of the freedom of

choice of each according to a universal law (MS 8: 230). Persons are

entitled to freedom of conscience and speech. But matters are different

when it comes to acting on the judgement. As we have seen, Kant

argues strenuously that a right to act on any private judgement cannot

be supported by positive law, because it would lead to anarchy. Who,

then, could be entitled to act on a judgement that the state has failed?

First it is necessary to establish exactly how it can be possible to act on

a judgement about the state given that Kant’s argument against revo-

lution rejects the view that anyone may make themselves judge over the

sovereign. After all, the state is instituted in order to end the state of

nature, where everyone acts on private judgements of right and wrong.

In the state, judging about law is solely the office of the sovereign, and

Kant approvingly quotes Frederick II’s motto: ‘Argue as much as

you will and about whatever you will, but obey!’ (WA 8: 37). Acting

according to existing right does not require judgement, because it is

simply to do what positive law requires, prohibits or permits. These are

strict duties, because they do not allow for latitude in how to implement

them, in contrast with ethical duties, which, as wide duties, allow

individuals leeway in terms of how ends are to be realized (MS 6: 411

and 390). As we have seen, the reason persons have no right to act on

their personal judgements about positive law when they are in the state

is that this is incompatible with public authority. But if persons may not

judge about the law, how could they have a right to judge about the

existence of the state?

To judge about the state is actually different from judging about laws. A

judgement about the state is a verdict about whether the social con-

figuration with its laws and public institutions counts as a civil condition,

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based on the application of the concept of the respublica noumenon in a

given context. This might seem similar to judging about laws, since

judging about the state too will involve a verdict on laws (it will simply

be a verdict on all the laws and public institutions in a society). But

judging about the state is different because in this case there is no

authority that could decide, since, as Ripstein rightly emphasizes (2009:

342), the verdict of the professed sovereign only has authority in case he

or she in fact is the sovereign (and at stake is that very question).

A judgement nonetheless has to be made, because given Kant’s view of

the state it is not obvious when it ceases to be one and the state of

nature sets in. Who, then, has the responsibility to judge? One might

have thought the judgement should be left to the people as a whole – as

Locke famously expressed it ‘the people shall be judge’ (1988: y240).

To Locke (as well as to Rousseau) collective judgement by the people

acting as one is possible because the people is united through a refer-

endum prior to entrusting a government.4 Kant too was committed to

the idea of popular sovereignty, but collective decisions by the people

are possible only through procedures binding on everyone, and that

presupposes positive law and sovereignty. In the absence of law the

people is merely an uncoordinated multitude (MS 8: 318, TP 8: 302).

Hence, if the people were in a position to judge, the question would

already have been decided. A referendum on revolution could not be

binding because there can be no procedurally correct way to hold it.

In order to set up a referendum about whether the polity is a state one

needs to settle on certain rules (about who should be permitted to vote,

how the question should be put, what should count as sufficient

majority and so on), but that decision presupposes an entity with the

authority to define the procedures. The only legitimate entity to do so

would be a sovereign entity employing law and superior coercion, and

(in the absence of international or cosmopolitan organizations) that can

only be the state. Again, the method for settling the question pre-

supposes what needs to be decided. There can exist no established

domestic procedures for binding judgements of whether a state is pre-

sent because at question is exactly whether such procedures exist

(Flikschuh 2008: 380ff.).

Nor could that judgement be left to intermediary associations like the

military, churches, or political parties engaging in elite negotiation.

These associations can exist in the state of nature, but they can have no

authority over individuals, since authority must come from the state.

In principle it is possible to set up an international or cosmopolitan



certifying board to judge on the recognition of entities as states, perhaps

similar to the existing system of recognition in the United Nations.

Contrary to the UN system it would apply comprehensive moral

standards to the judgement and not be satisfied with a judgement of

effective power. If a federation had this authority, states would in

principle no longer be sovereign because they would recognize a

superior authority. For Kant this is not an alternative because he, for a

variety of reasons, holds state sovereignty to be of supreme importance

(ZEF 8: 355–7). Moreover, an international certifying board addresses

the problem only on one level and the difficulty reappears on a higher

level because one would need a certifying board to certify the certifying

board, which leads to an infinite regress.

In the absence of established authorities, individuals are left with the

responsibility to judge. This follows from the postulate of public right,

which requires that persons exit the state of nature and join a civil

condition.

When you cannot avoid living side by side with all others, you

ought to leave the state of nature and proceed with them into a

rightful condition, that is, a condition of distributive justice.

(MS 6: 307)

The duty to enter a state would make no sense unless persons first judge

whether they may already be in a civil condition. The first (and

necessary) step for someone who wants to be in a state is necessarily to

judge whether he or she might already be in one. Moreover, persons

who are in the state of nature are entitled to enforce the judgement. To

enter a rightful condition is an external duty, one that requires specific

performance (not that one adopts a particular end), which means that it

can be enforced from the outside through external sanctions. The cor-

ollary of the duty to join the state is a right to force others to join if they

refuse to do so voluntarily:

If it must be possible, in terms of rights, to have an external

object as one’s own, the subject must also be permitted to

constrain everyone else with whom he comes into conflict

about whether an external object is his or another’s to enter

along with him into a civil constitution. (MS 6: 256)

Kant describes this entitlement to use force variously as a permission

(Erlaubnis), a provisional right (ein Recht), and an authorization (Befugnis).

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He writes that one may (durfen) force others and that one is not bound

(verbunden) to respect their desires to remain in a state of nature (MS 6:

256–7, 307–8, 312–13). This is not a right privately to secure one’s

possessions in the state of nature, or a right to punish transgressors

(as it is for Locke).5 In Kant’s state of nature rights are provisional

because of the lack of public law that would guarantee them, and there

can be no entitlement unilaterally to enforce them because respect

for others presupposes enforcement through public legal authority.

The condition of rightful reciprocal obligations is public law, and law

only comes into being with the state. The authorization persons have

is therefore not to secure their property but to force others to join a

rightful condition where a sovereign can determine through law, and

with the help of courts, what justice requires.6

That forcing recalcitrant persons to join the state is consistent with

justice is evident from Kant’s justification of coercion:

Now whatever is wrong is a hindrance to freedom in accordance

with universal laws. But coercion is a hindrance or resistance to

freedom. Therefore, if a certain use of freedom is itself a hin-

drance to freedom in accordance with universal laws (i.e., wrong),

coercion that is opposed to this (as a hindering of a hindrance to

freedom) is consistent with freedom in accordance with universal

laws, that is, it is right. (MS 6: 231)

Refusing to enter the state is wrong (‘in the highest degree’) because it is

incompatible with equal liberty and therefore in conflict with the innate

right to freedom. For that reason it must be right to coercively hinder

people from remaining in the state of nature. But to speak of having a

right in the state of nature is odd from a Kantian point of view, since

positive law is necessary for establishing rights. This is what was earlier

referred to as the public recognition view of justice. Indeed, in the quote

above Kant described duties of right as those ‘for which external law-

giving is possible’. But in the state of nature there exists neither public

law nor coercive institutions, so it is impossible to have external law-

giving for a right to force others to join in creating a state.

The authorization to use force must therefore be thought of as a

provisional right, justifiable with reference to what it seeks to achieve.

This provisional right is not retained within the state and can only

justify the use of force before it comes into being or when it has been

dissolved. The basis for it cannot be a constitutional procedure but



must be the requirement of practical reason to enter a lawful condition.

The act to force others into the state is omnilateral only in the sense that

it is performed for the sake of creating public institutions; it will not be

omnilateral in the sense of being sanctioned by institutions that repre-

sent a universal will. Often those who claim sovereignty by force are

mere strongmen who are not motivated by the duty of right to enter the

state, and who do not aim to establish constitutional government. But it

is at least possible to imagine persons using force to establish the state

in pursuit of a duty of right, and therefore it can be a duty to create a

state (since ought implies can) and to do so by force if necessary.

One may wonder whether the authorization to use force to create the

state after all is identical to Locke’s concept of natural law, which

entitles persons to use force against tyrannical rulers. In a basic sense

the concepts of justice of the two thinkers are clearly different: Locke’s

notion of right is orientated towards securing an end (such as the

individual or common good), whereas Kant’s notion of right is formal

and results from the procedure of universalization without contra-

diction inherent in the UPR. But Locke and Kant do share the idea that

reason itself, in restricted circumstances, can justify private individuals

in using violence. For Locke this takes place within the state, specifically

against a government whose authority has been dissolved. For Kant,

however, natural right can never justify private action against the

government for the various reasons we have seen that he gives against a

right of resistance and revolution. The private use of violence can only

be justified once the state itself (not just the authority of the ruler) has

been dissolved. In that case, reason does indeed authorize the creation

of a state through private use of violence.

4. Contradicting Authority?The argument so far has been that persons always have a responsibility

to judge whether the polity truly is a state. But this might seem like just

a different way of justifying revolution, and therefore contrary to Kant’s

basic principles. After all, any revolutionary might claim the state no

longer exists and proceed unilaterally to seek to overthrow the rule of

law. In his anti-revolutionary argument, Kant made it clear that the

state’s authority cannot depend on the more or less well informed

opinions of one or several persons but must be above the shifting fac-

tions in society. Its authority comes only from governing according to

principles of right. But if one faction in society can be justified in

claiming that the state has vanished it would seem that the state’s

authority nonetheless depends on the consent of one or several groups.

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Yet, this is not a consequence of the theory. First it is important to recall

that judging consists of two elements: forming a verdict and acting on

it. Persons are always entitled to form a verdict, but they are not always

permitted to act on it. No one can legitimately be prevented from

thinking what they like about the present government, and they should

be free to voice that opinion as long as they do not conspire to over-

throw the state. But they are free to act on the judgement only if in fact

they are in the state of nature. If they are in the state of nature there is of

course no state to overthrow so the claim is not that the state’s authority

is limited by or dependent on private judgements.

This might sound unsatisfactory because the consequence may often

be similar to a revolution. After all, it is impossible to establish

authoritatively whether the condition in fact is the state of nature or a

highly imperfect state. There is no neutral party to decide who is right

between the person claiming to rule a state and the person denying the

claim. Hence, it would be easy for a would-be revolutionary simply to

claim that the state no longer exists and the result might be a constant

stream of challenges to the state. Yet, while this may be worrisome, it

is a contingent empirical consequence, whereas Kant’s argument is

moral and juridical. Kant is concerned to deny that anyone can claim

moral legitimacy against law, and that a constitution coherently can

allow persons to break the law when they judge it to be necessary. But

the claim that persons have a responsibility to judge is not that there

should be a positive law permitting persons to make the judgement

and to act on it (it would be a law with limited use, since it would

only be legitimately appealed to when the state has ceased to exist).

Nor is the claim that morality can overrule legality, because it would

only be legitimate to act on the judgement when the state has ceased

to exist. Thus, Kant’s arguments against a moral or legal right to

revolution do not exclude that persons have a responsibility to judge

the state.

Persons who inappropriately deny that a juridical condition exists

challenge the stability of the system, not its authority. Authority derives

from providing the rule of law and having the power to secure it.

If persons dishonestly challenge this system such authority does not

disappear. The appropriate public answer is to secure the stability of the

legal system by striking down the threat and treating the disobedient

subjects as rebels. Such rebels are no different from anyone else who

breaks the law. Their motives may be noble, but noble motives cannot

justify anyone in unilaterally resisting the rule of law.



Because the idea of judging the state does not justify action against

actual states, it is not a justification for revolution. A revolution is when

force is used to overturn the existing constitution in a state, and since

there is no constitution in the state of nature there can also be no

revolution. For this reason, other arguments Kant provided against a

right of revolution do not exclude a responsibility to judge whether the

state exists. He ruled out revolution because it returns society to the

state of nature, but in this case the state of nature already obtains.

Furthermore, he argued that the idea of a revolution is incoherent

because a people cannot act collectively and with authority in the

absence of state institutions and public procedures of coordination

(MS 8: 318, 340). It might be thought that acting on a judgement about

the state likewise presupposes an untenable view of non-institutional

collective action. But, as was shown earlier, it presupposes no collective

action because the agents are individual persons, and if they band

together they do not act in the capacity of a people but as moral agents.

If someone attempted to coordinate their actions, that person would

not act with authority and could not require obedience.

ConclusionOne might think that a responsibility to judge the state goes against the

grain of the public recognition theory of justice. According to the public

recognition view, the human right to freedom is only realized through

public law in a well-governed state. Public authority is justified when it

protects individual rights, and rights are given content and made into

actionable claims when they are defined by public procedures. Subjects

who claim to have rights to one thing or the other in the state are never

entitled to simply act on this judgement, but must make their claims

through established public procedures. Otherwise they fail to respect

their fellow citizens. If the public procedures themselves are defective,

the appropriate way to change them is not unilaterally to assert one’s

view of justice, but rather to go through the existing procedures to seek

to improve them. Considering Kant’s unusual respect for procedure one

might think that for an individual to make him or herself a judge about

the state is contrary to a very basic principle.

But this is to misunderstand the significance of procedure for Kant.

To be sure, positive law and public procedures perform essential ser-

vices in Kant’s view. Positive law allows individuals to act without

always considering their purposes from a moral point of view, but

simply from the perspective of legality. If persons always were required

to evaluate their actions from a moral point of view, it is difficult to see

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how they would have time for anything much else. The law-governed

state makes this easier for subjects by establishing in advance what kind

of behaviour is considered acceptable from a moral point of view. But

persons can only be morally permitted mechanically to obey if they

really are within a proper state and therefore can assume that laws

reflect public reason and are not merely private coercion. But to know that

laws reflect public reason and to be certain that public procedures are

functioning well, persons must first judge that the political system really is

justified. In this judgement they are alone. The public procedures them-

selves cannot authoritatively claim to be moral and well functioning. Thus,

in order to benefit from the services of positive law persons must first make

a moral judgement about the condition they are in.

The broader implication is that the primary personal responsibility is

not to evaluate the morality of single laws but to evaluate the moral

standing of the polity. It is not because of its impracticality that Kant

rules out the claim that persons should morally evaluate each law

before acting on it, but because it would render authority conditional

on private judgements. Without universal acceptance of a public legal

authority to arbitrate in conflict people will solve disagreements by the

right of the stronger, and this is to remain in the state of nature. Persons

should be free to judge each and every law from a moral point of view

and to criticize laws severely if they are found deficient (that is what

good citizens do), but must never take the law in their own hands.

But the duty to obey the law only makes sense if it is commanded by

someone with the authority to make law, that is, by an agent of a true

state. A person who is commanded by a tyrant to carry out certain tasks

(one might think of Adolf Eichmann) should not conscientiously evaluate

which of those tasks are morally permissible, because he or she ought to

realize that the tyrant has no authority to issue commands in the first

place. Eichmann failed to make that initial judgement on whether he was

in a proper state, or whether in fact the institution he was a part of was

merely a highly elaborate band of robbers. The Kantian view requires

persons to think carefully before they come to the conclusion that the

polity is a state, because only entities that perform an essentially moral

task of preserving equal liberty have authority. Obedience to state

authority is clearly of monumental importance to Kant. But the point of

state authority is to enable individuals to enjoy the rule of law. Therefore,

the first concern in the Kantian theory is that persons judge whether they

are in a condition where the rule of law is protected and where they

therefore are morally entitled to obey.



Sometimes states collapse in chaotic circumstances and it might be

objected that it is aimless to look for justified decisions in this murky

area of state transformation, since decisions are taken in the heat of the

battle, often in civil-war-like circumstances. But even then persons have

choices to make, particularly about which of several contenders for

power actually represents the state, and these judgements must be

justified to themselves and to others. In a melee each party will claim to

be the party of order against the party of anarchy and allegations about

the dissolution of the state are inevitably subject to political exploita-

tion. But that is no reason to reject them; they must be evaluated on the

strength of their reasons. The same goes for exploitation by interna-

tional actors. Failed states cannot have the same rights in international

relations as regular states have, and it may be tempting for countries to

justify interventions by claiming that a country is a failed state. The

moral and legal consequences of this on the international level are

beyond the scope of this paper but it remains true in this domain too

that the possibility of false judgements does not mean judgements

should not be made at all.7

Notes

1 Immanuel Kant, TP 8: 299. The following abbreviations have been used:

A 5 Anthropologie in pragmatischer Hinsicht; G 5 Grundlegung zur Metaphysik der

Sitten; MS 5 Die Metaphysik der Sitten; SF: Der Streit der Fakultaten; TP 5 Uber den

Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht fur die Praxis;

WA 5 Beantwortung der Frage: Was ist Aufklarung? ZEF 5 Zum ewigen Frieden. The

numbers refer to volume and page in the Prussian Academy edition. Translations

are from Immanuel Kant: Practical Philosophy. Ed. Mary J. Gregor. Cambridge:

Cambridge University Press, 1996.

2 See also Pogge (1988). The first to propose the interpretation was Johann Heinrich

Tieftrunk in a commentary on Kant’s Rechtslehre that came in two volumes in

1797–8.

3 Permissive laws are internally connected to circumstances of implementation, so that

feasibility constitutes a limiting condition within the law itself. This condition is that

delaying putting the law into effect is permitted ‘lest implementing the law prema-

turely counteracts its very purpose’ (ZEF 8: 347). Hence, they are not understood as

exceptions to laws or as a way of making an exception to the letter of the law while

remaining faithful to its spirit.

4 Locke (1988: yy220 and 240); Rousseau (1987: chs 14 and 17).

5 For the difference between the Kantian and the Lockean views, see Flikschuh (2008).

See also Varden (2008) and Hodgson (2010).

6 The right to force others to join into a state is juridical. The category ‘ethical right’

does not exist in Kant’s writings, because rights have to do exclusively with external

relations among interacting agents, and so are usually not concerned with what takes

place in an individual’s mind. An ethical right would make little sense, furthermore,

since it is impossible to use external means to force persons autonomously to set ends

for themselves. Ethical duties can justify other actions that have consequences for

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authority, however, they may for example justify conscientious objection (for an

argument to that effect, see Arntzen 1996).

7 Many thanks to those who commented on earlier versions of this essay: Daniel

Cordes, Thomas Donahue, Michael Frazer, James Ingram, Pablo Kalmanovitz,

Alexander Kaufman, Claudio Lopez-Guerra, Frederick Neuhouser, Thomas Pogge,

Veronique Pouillard, Anna Stilz, Nadia Urbinati, Daniel Viehoff, Tim Waligore, Jer-

emy Waldron and an anonymous reviewer for Kantian Review. Earlier versions were

presented at APSA on 1 Sept. 2005, at NPSA on 10 Nov. 2006, and at the Centre for

the Study of Social Justice at the University of Oxford, on 17 Jan. 2011. I am grateful

to David Miller for the opportunity to present the paper at Oxford.

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